Dejected Essendon players have once again left the football field in 2015 after a thrashing. The captain is injured and taking a break from the game after acknowledging he is not enjoying his football. The resilience of the entire playing group appears to be flagging. Much of this has been explained, at least in part, by the psychological effect of the World Anti-Doping Agency’s decision to appeal to the Court of Arbitration for Sport. The coach has now resigned.
WADA had appealed a decision of the AFL Tribunal to dismiss charges of anti-doping rule violations against 34 past and present Essendon players ‘at the last gasp’, when the time period for an appeal was about to expire. That WADA made its run so late surprised many observers. However, it should not have come as a shock to the players, but apparently did.
The AFL Tribunal’s findings were the equivalent of a home and a way season. The appeals process was the equivalent of a finals campaign. For the players to be so apparently unprepared for the WADA appeal, in light of its statistical possibility, is worrying.
The apparent impact on the playing group’s morale in 2015, caused by WADA’s decision to appeal, tends to focus the lawyer’s mind on one thing: Litigation Management. Were the players properly prepared for the psychological prospect of an appeal, and given tools to help maintain the resilience they had demonstrated so effectively in previous years’ on-field performances under similar pressure?
The role of the legal team is at the forefront of this analysis. Advising on the law is but one part of a lawyer’s required skill set. Just in the same way we discuss a doctor’s bed-side manner, the pastoral care offered by lawyers to their clients can be the difference between making litigation a manageable rather than tortuous experience.
Of course, litigation management in the context of 34 young men facing similar disciplinary charges must be extremely difficult.
First, this is a large number of people.
Secondly, no doubt the players have been well looked after, but one must acknowledge the difficulty in communicating a clear message when not all players are at the same location (some are retired, some are at new clubs).
Thirdly, during the course of the Essendon supplements saga, some players have obtained separate legal representation.
Fourthly, it is unlikely that the interests of the players’ employer (primarily, Essendon Football Club) and their union (AFL Players’ Association) have coincided at all times. This leads to the following question: Which body has been the dominant communicator about legal issues throughout this period? Has the message been consistent and seamless?
Here are a few general ‘litigation management’ tips intended to help anyone facing litigation, whether reluctantly or not. They are not intended to suggest that, if applied to the 34 Essendon players, who are in a unique position, everything will be better. The idea is to illustrate though, some of the techniques capable of getting people through the long haul of an extended legal case.
A couple of tips might make you raise a quizzical brow because they seem to bear no correlation to ‘legal things’. That is the point. Litigation can significantly stress the system, which is why one must focus on physical health to facilitate mental strength. Such a concept is not that different from a game of football.
By way of introduction, litigation management, not entirely unrelated to list management (except no one gets de-listed), is all about match fitness. Here, the ‘match’ is the hearing room but like any game of competitive sport, the goal is to emerge from the process, win, lose or draw, standing tall and ready for the next of life’s many challenges. In other words, what happens ‘between the ears’ can help one emerge from litigation stress sometimes a little bowed, but certainly unbroken.
Tip 1: Litigation (and LIFE) is a marathon not a sprint
This should be a key mantra for any litigant. In truth, the timeline for the Essendon supplements saga is consistent with normal litigation. All that is different is that the ball-by-ball play has been under the public gaze. Cases which take years to resolve may not be desirable; but they are the norm.
With that in mind, it is important to embrace the concept that ‘time is your friend’. Rather than railing against factors outside one’s control (e.g. length of time to hearing), shift focus to ask: How could this be turned into a positive for me? For instance, for some Essendon players, the internal mindset could change to: “I’ll be retired by the time this is over, so why worry about it?” or “The time this is taking to resolve will surely be relevant to penalty, even if I don’t win” or “Nothing is going to happen during the season, so I need to get on with my life“.
Of course, there is the undeniable sense of injustice that many will feel, such as “Why me?”. I tend to answer this question on the basis that it could be a lot worse. In the legal context, civil litigation, and litigation with disciplinary consequences (even if played out in the public arena) is a long way away from criminal sanctions (where one’s liberty might be on the line).
In a football context, one only need ask Matthew Egan, the Essendon Bombers interim coach, the definition of adversity. Geelong supporters shake their heads when his name comes up. An unbelievably talented defender at the start of a stellar football career, Matthew is entitled to ask “Why me?” after injuring his foot on the eve of Geelong’s season of premiership success, suffering seven foot operations and never playing a game of football again. No doubt he has gone through very tough times mentally, but also with time comes perspective. Now a talented assistant coach, Matthew is reportedly a strong mentor to young men about how fickle and short the career of a professional AFL footballer can be.
A question for the 34 Essendon players to reflect on is therefore this: If I accept that a few years is actually not long in a lifetime, and my position at the centre of the supplements saga is a unique one, what have I learnt that might be useful to me, and which I can pass on to others, in the future?
Tip 2: Knowledge is power
I do not subscribe to the view that people should be shielded from the truth. I think that is a terrible idea. In the present case, young men are not children. They are adults capable of making decisions for themselves.
This, of course, goes both ways. Professional footballers should not outsource hard decisions to their managers or family members. Managing your life can be a team game, but ultimately you need to make the hard decisions yourself.
If we apply this to litigation, much of the guess work, the speculation and the rumour mongering can disappear if a litigant informs himself or herself of every aspect of the litigation process.
There are two important reasons to know as much as you can. First, knowledge means no surprises. Once we accept that litigation is a marathon not a sprint, and we inform ourselves about legal process (how the courts work, how tribunals work, how they interact, how appeals work), the capacity for surprise starts to diminish. This helps our resilience when our opponent takes a step in the legal process. Anticipating it means you are ready for it.
I tell clients to assume that the litigation will not end until every single step is exhausted. Then, if the matter finishes before this, the ending feels almost premature. This is a very different state of mind from simply wishing that the litigation ends soon or that it ‘just goes away’.
Secondly, knowledge helps you take control of strategy. Lawyers should only advise, not control the outcome. Of course, we make recommendations; clients rightly don’t like it when we sit on the fence. However, test us on those recommendations! Do not just accept what we say. I always feel so much better as a lawyer feeling that my client is an active participant in the decision making process.
Tip 3: Litigation is a game of sliding doors
It is worth downloading the 1998 Gwyneth Paltrow movie ‘Sliding Doors‘ if you haven’t seen it before. The plot of the movie changes depending on the decisions Gwyneth’s character makes. Essentially, you see the two lives she could have had, based on the choices she has made.
Litigation is a game of strategy. Sliding doors strategy. This is because, if you think of it as a marathon not a sprint, where knowledge is power, the next piece to consider is “what is my next step?“.
Many lawyers have sleepless nights worrying about this question for you. Imagine those A-type personalities pacing the floor in the early hours of the morning, worrying about the implications of what they are about to recommend to their clients. This is because good lawyers appreciate that fine judgments change the litigation future for you. They want your choice to be a wise one, to help you get the best result.
Every single decision in litigation should be considered a sliding doors moment.
As a practical tool, to help you work through the options (with your ‘knowledge is power’ hat on), prepare a decision tree or ask your lawyer to put one together for you, so that you can sit down and work through it together.
A decision tree is a decision support tool that uses a tree-like graph or model of decisions and their possible consequences. Think of it as like a flow chart or series of ‘sliding doors’. Imagine what it feels like to go through each of those doors before you make a decision about what to do next.
Here is a nice example of a decision tree:
Tip 4: Your physical health is just as important as KNOWING THE LAW
For the 34 Essendon players, this one is already nailed (although if you have recently retired, continue to keep up the good work!).
This lesson was brought home to me when I was an articled clerk. I worked at a law firm with a client base which included high net worth people charged with criminal offences, such as tax offences. When working there, I was told a story about one of the partners which I figured was probably true, such was his work ethic and determination to help his clients to the best of his ability.
The story was this: The partner’s client had arrived at his office in pretty bad physical shape. The partner knew his client likely had years of litigation ahead of him, with the threat of jail hanging over his head the whole time. At some point there would be a lengthy trial, with his client probably facing lengthy cross-examination. And so he said to his client: “You have to go to the gym“. Then he said: “And to make sure you do this, I will go with you“.
This holistic approach to client management was a long way from reading cases in law school. You can imagine why this story has stayed with me all these years.
The partner did get a good result for his client, who was also incidentally, probably in much better physical shape by the end of the litigation, than he was at the beginning.
Tip 5: Eat breakfast
This is my mantra. Many of my clients over the years will recognise my ‘saying’ and have a chuckle at my expense.
The reason is simple: Being cross-examined is a very intense experience. It is not necessarily terrible, just intense. You know someone is trying to trip you up, and you have to stay focussed on what is being asked of you. Too many times, I have seen witnesses go hypoglycaemic at about 12.30 pm. Blood sugar levels are all over the place, energy levels have bottomed out, and the intense focus just disappears. This means the cross examiner can have a ripper time between 12.30 pm and lunchtime (and thereafter), often obtaining important concessions.
Accordingly, I have a strong view that witnesses, or people subject to intense questioning, or people having to get through a tough hearing, or a mediation, or anything legal requiring extended periods of concentration, should have a good breakfast. Preferably porridge. Even if it is the last thing you feel like eating.
For lawyers – Litigation management helps clients navigate a stressful experience by giving equal attention to the mind + body.
For clients – Try to embrace the extended time it takes for litigation typically to resolve itself, inform yourself as much as you can about every element of the legal process, get involved in the strategy, look after your physical fitness and eat breakfast.